ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0804; FRL- ] 

Approval and Promulgation of Air Quality Implementation Plans; Delaware; Amendment 

to Electric Generating Unit Multi-Pollutant Regulation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving a State Implementation Plan (SIP) revision submitted by the 

State of Delaware. The revision is an amendment to the Electric Generating Unit Multi-Pollutant 

Regulation of Delaware’s Administrative Code, and it modifies the sulfur dioxide (SO2) mass 

emissions limit associated with Conectiv Edge Moor Unit 5 beginning in calendar year 2009. 

This action is being taken under the Clean Air Act (CAA or the Act).

EFFECTIVE DATE: This final rule is effective on [insert date 30 days from date of 

publication].

ADDRESSES: EPA has established a docket for this action under Docket ID Number EPAR03-OAR-2009-0804. All documents in the docket are listed in the www.regulations.gov

website. Although listed in the electronic docket, some information is not publicly available, 

i.e., confidential business information (CBI) or other information whose disclosure is restricted 

by statute. Certain other material, such as copyrighted material, is not placed on the Internet and 

by statute. Certain other material, such as copyrighted material, is not placed on the Internet and

will be publicly available only in hard copy form. Publicly available docket materials are 

available either electronically through www.regulations.gov or in hard copy for public inspection 
2

during normal business hours at the Air Protection Division, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 

submittal are available at the Delaware Department of Natural Resources & Environmental 

Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19901.

FOR FURTHER INFORMATION CONTACT: Irene Shandruk, (215) 814-2166, or by email at shandruk.irene@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

On January 5, 2010 (75 FR 2), EPA published a notice of proposed rulemaking (NPR) for the 

State of Delaware. The NPR proposed approval of Delaware’s SIP revision pertaining to 

Regulation No. 1146 – Electric Generating Unit (EGU) Multi-Pollutant Regulation. The 

regulation was adopted in order to impose lower emissions limits of nitrogen oxides (NOx) and

SO2 in order to help Delaware attain and maintain the national ambient air quality standards 

(NAAQS) for ozone and fine particulate matter (PM2.5), as well as to assist Delaware in 

achieving the emissions reductions needed to support the State’s 8-hour ozone reasonable further 

progress plan (RFP). The formal SIP revision was submitted by the Delaware Department of 

Natural Resources and Environmental Control (DNREC) November 16, 2006. No comments 

were received on the NPR.

II. Summary of SIP Revision

On October 7, 2009, EPA received a SIP revision to amend Regulation No. 1146. This SIP 

revision was the result of a settlement agreement between Conectiv Delmarva Generating, Inc. 
3

and DNREC in December 2008. Conectiv had filed an appeal challenging the regulation for 

their Edge Moor 5 facility. The emissions limit of 2,427 tons per year limited the facility from 

operating in extreme circumstances in the event that failure at other production units would 

require them to exceed that limit in order to supply the needed electricity. The limit of 4,600 

tons per year was determined to be an adequate limit after an analysis of the facility’s history of 

operation and the estimate of future operations using the low sulfur (0.5%) residual fuel to 

generate electricity at the 446 megawatt oil-fired steam generating unit. Currently, the facility

operates at a 10% capacity factor. If so required, the new emissions limit would allow the facility

to operate at a 45% capacity factor. 

The Delaware Department of Natural Resources and Environmental Control requested that a 

revision to the State’s SIP concerning amendment, which modifies the SO2 mass emissions limit 

associated with Conectiv Edge Moor Unit 5, be approved. 

III. Final Action

Delaware has met the requirements concerning an amendment to the Electric Generating Unit 

Multi-Pollutant Regulation of Delaware’s Administrative Code, which modifies the SO2 mass 

emissions limit associated with Conectiv Edge Moor Unit 5. The purpose of this revision is to 

assist Delaware in achieving the emissions reductions needed to support the State’s 8-hour ozone 

RFP, and therefore, EPA is approving it. 

IV. Statutory and Executive Order Reviews 

A. General Requirements
4

Under the Clean Air Act, the Administrator is required to approve a SIP submission that 

complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, 

provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely

approves state law as meeting Federal requirements and does not impose additional requirements 

beyond those imposed by state law. For that reason, this action:

 is not a "significant regulatory action” subject to review by the Office of Management and 

Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); 

 does not impose an information collection burden under the provisions of the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.);

 is certified as not having a significant economic impact on a substantial number of small 

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); 

 does not contain any unfunded mandate or significantly or uniquely affect small 

governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 

104-4);

 does not have Federalism implications as specified in Executive Order 13132 (64 FR 

43255, August 10, 1999);

 is not an economically significant regulatory action based on health or safety risks subject 

to Executive Order 13045 (62 FR 19885, April 23, 1997); 

 is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, 

May 22, 2001); 
5

 is not subject to requirements of Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 272 note) because application of those 

requirements would be inconsistent with the Clean Air Act; and 

 does not provide EPA with the discretionary authority to address, as appropriate, 

disproportionate human health or environmental effects, using practicable and legally

permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 

FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country

located in the state, and EPA notes that it will not impose substantial direct costs on tribal 

governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory

Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the 

agency promulgating the rule must submit a rule report, which includes a copy of the rule, to 

each House of the Congress and to the Comptroller General of the United States. EPA will 

submit a report containing this action and other required information to the U.S. Senate, the U.S. 

House of Representatives, and the Comptroller General of the United States prior to publication 

of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is 

published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 

804(2). 
6

C. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be 

filed in the United States Court of Appeals for the appropriate circuit by [Insert date 60 days from

date of publication of this document in the Federal Register]. Filing a petition for 

reconsideration by the Administrator of this final rule does not affect the finality of this action for 

the purposes of judicial review nor does it extend the time within which a petition for judicial 

review may be filed, and shall not postpone the effectiveness of such rule or action. This action 

approving Delaware’s SIP revision pertaining to an amendment to the Electric Generating Unit 

Multi-Pollutant Regulation of Delaware’s Administrative Code, which modifies the SO2 mass 

emissions limit associated with Conectiv Edge Moor Unit 5, may not be challenged later in 

proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR part 52 

Environmental protection, Air pollution control, Nitrogen dioxide, Ozone, Particulate matter, and 

Sulfur oxides. 

 W. C. Early, Acting

 Regional Administrator 

__February 25, 2010____________ __________________________

Dated: Shawn M. Garvin,

 Regional Administrator,

 Region III.
7

40 CFR part 52 is amended as follows: 

PART 52 - [AMENDED] 

1. The authority citation for part 52 continues to read as follows: 

 Authority: 42 U.S.C. 7401 et seq.

Subpart IB Delaware

2. In ' 52.420, the table in paragraph (c) is amended by renaming the entry for Table II in 

Regulation No. 1146 as Table 5-1 and revising the entry to read as follows:

' 52.420 Identification of plan.

* * * * *

(c) * * *

EPA-APPROVED REGULATIONS IN THE DELAWARE SIP

State citation Title/subject State effective 

date

EPA approval 

date

Additional 

explanation

 * * * * * * * 

Regulation No. 

1146 

Electric Generating Unit (EGU) Multi-Pollutant Regulation

 * * * * * * *

Table 5-1 

(Formerly Table 

II)

Annual SO2 Mass 

Emissions Limit

9/11/08

10/10/09

[Insert Federal 

Register publication 

date] [Insert page 

number where the 

document begins]

Modified 

emissions limit for 

Conectiv Edge 

Moor Unit 5

* * * * * * * 

* * * * *